Tests for Unconstitutional Partisan Gerrymandering in a Post-Gill World

Abstract

I discuss four articles in Election Law Journal on partisan gerrymandering that were written after the Supreme Court's decision in Gill v. Whitford, and I lay out my own post-Gill views on how best to test for unconstitutionality. Curiel and Steelman (2018) offer a new statewide test for partisan gerrymandering, and Nagle (2019) also offers new statewide tests as well as critiquing previously offered ones. McDonald et al. (2018) offer both district-specific and statewide measures of partisan gerrymandering. Wang et al. (2018) focus on partisan gerrymandering standards that may evolve through state court rather than federal jurisprudence, though like McDonald et al. (2018) they offer both statewide and district-specific approaches. I offer four distinct perspectives: a district-specific approach based on adapting ideas from the racial gerrymandering "vote dilution" literature; a district-specific approach based on adapting ideas from the "race preponderant motive" line of jurisprudence; a third approach that reconciles statewide and district-specific approaches by looking at simulated maps that are computer-generated using traditional districting criteria and asking whether particular districts should be judged as statistical outliers when compared to what would be expected based on those maps; and a fourth approach reconciling statewide and district-specific ideas about detecting partisan gerrymandering in a very different way by making a showing of very substantial statewide gerrymandering effects a hurdle which must be overcome before proceeding to district-specific analyses. In this approach, if a statewide violation is found, the remedy required will only make changes in a delimited set of districts. I argue that, although the Common Cause v. Rucho (2018) court does not describe its post-Gill position in this way, this way of framing the majority opinion in Rucho allows that opinion to be seen as more directly compatible with a district-specific interpretation of Gill. In all my approaches, I emphasize the need to separately delineate standards for unconstitutional "packing" and standards for unconstitutional "cracking," and I argue that more than one test may be necessary to detect different types of gerrymandering and that satisfactory tests must be able to detect both straightforward and more sophisticated and subtler forms of partisan gerrymandering. I also show how some of the expert witness testimony provided in the only successful challenge to partisan gerrymandering to date, League of Women Voters v. Pennsylvania (2018), can be adapted for use in the federal context.